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August 2010 Transit Cooperative Research Program Sponsored by the Federal Transit Administration Responsible Senior Program Officer: Gwen Chisholm Smith Legal Research Digest 32 RECONCILING sECURITY, dISCLOSURE, AND rECORD-rETENTION rEQUIREMENTS IN tRANSIT pROCUREMENTS This report was prepared under TCRP Project J-5, "Legal Aspects of Transit and Intermodal Transportation Programs," for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Jocelyn K. Waite, Esq., Waite & Associates. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. The Problem and Its Solution recently, maintaining the confidentiality of security information not commonly available has come to the The nation's 6,000 plus transit agencies need to have fore. While issues related to such security informa- access to a program that can provide authoritatively tion are most obvious for security contracts, transit researched, specific, limited-scope studies of legal is- agency personnel should also be aware of the poten- sues and problems having national significance and tial for security information being included in com- application to their business. Some transit programs petitive bidding for other types of contracts. At the involve legal problems and issues that are not shared same time, there is also a clear, well-established pub- with other modes; as, for example, compliance with lic interest in ensuring that publicly funded projects transit-equipment and operations guidelines, FTA fi- are transparent. nancing initiatives, private-sector programs, and labor There are several major aspects of the procurement or environmental standards relating to transit opera- process for which it is important to be cognizant of tions. Also, much of the information that is needed by security requirements: developing the procurement transit attorneys to address legal concerns is scattered documentation, allowing site visits and access to an- and fragmented. Consequently, it would be helpful to cillary documents not part of the procurement docu- the transit lawyer to have well-resourced and well- mentation, responding to requests for information documented reports on specific legal topics available from parties other than bidders and contractors, and to the transit legal community. managing procurement documents. The Legal Research Digests (LRDs) are developed Transit agencies must also be cognizant of dis- to assist transit attorneys in dealing with the myriad closure requirements under both federal and state of initiatives and problems associated with transit law that will affect their ability to protect security start-up and operations, as well as with day-to-day le- information. gal work. The LRDs address such issues as eminent There are requirements relevant to transit agencies' domain, civil rights, constitutional rights, contract- efforts to balance the competing needs of open gov- ing, environmental concerns, labor, procurement, risk ernment and public security. These legal requirements management, security, tort liability, and zoning. The include federal and state open records requirements, transit legal research, when conducted through the including security exemptions; post-September 11, TRB's legal studies process, either collects primary 2001, federal requirements for specified types of se- data that generally are not available elsewhere or per- curity information; and federal and state record reten- forms analysis of existing literature. tion requirements. This digest should be useful to attorneys, trans- Applications portation officials, engineers, information specialists, security personnel, record retention staff, and policy Transit agencies have historically been aware of the makers. confidentiality required in the bidding process. More TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES